Of Men and Not the Law
The main burden of Lyman A. Garber’s Of Men and Not of Law (Devin-Adair, $3.95) is that our courts, led by the Supreme Court of the United States, are setting themselves up as super legislatures and thus fracturing the tripartite “separation of the powers” that they have been sworn to uphold. The thesis is maintained with some wordiness, but in the semantic jungle in which we have all been scrabbling for certainty since 1933 maybe a lot of words are inevitable. The essential point is that Mr. Garber sustains his case.
Historically, the Supreme Court’s usurpations divide themselves into two well-demarcated periods. In the nineteen thirties, when the New Deal was riding high, the Court laid down a number of tortured economic decisions. In the nineteen fifties and sixties, the questionable majority rulings were sociological in nature. Taken together, the two sets of rulings have virtually nullified the Ninth and Tenth Amendments to the Constitution. Amendment Nine, it may be dimly remembered, reads: “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” Amendment Ten reads: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
These amendments have been rendered meaningless by the Supreme Court’s construction of the Interstate Commerce clause, the General Welfare clause, and the equal rights guarantee of the Fourteenth Amendment. By reading into the Constitution ideas that were never contemplated by the Founding Fathers, the judges have effectively destroyed the old balance between the states and the Federal government in Washington. That they have done this in the name of morality is no excuse, for to change the law to conform to new canons of morality is the prerogative of the voters, who can always avail themselves of the amending process to accomplish ends that were not originally sanctioned in the Constitution of 1787.
“Nine Old Men”
In 1930, when he was Governor of New York, Franklin Delano Roosevelt said: “Washington must not be encouraged to interfere… in the matter of a great number of… vital problems of government, such as the conduct of public utilities, of banks, of insurance, of business, of agriculture, of education, of social welfare, and of a dozen other important features.” But this was Roosevelt before he had listened to Rexford Tugwell and hired a brains trust. The brains trust consisted of chronic centralizers, and they spawned the Agricultural Adjustment Act of 1933 and the National Recovery Act. Both of these acts were called unconstitutional by the Supreme Court of the “nine old men,” who held that Congress does not have the authority to manage business or to delegate the powers of management under the transparent guise of regulating interstate commerce.
Obstructed in the 1933-36 years by a majority of justices who were well acquainted with the deliberations of Madison, Jefferson, and other Founding Fathers, the New Deal later recreated the AAA by getting a new interpretation that raised the “General Welfare” clause of the Constitution to the rank of a specific power of Congress. The fact that Madison and Jefferson had repeatedly assured the electorate in the thirteen original states that the two words “general welfare” did not override specific provisions of the Constitution was conveniently overlooked by the new Supreme Court justices who had been appointed by 1937.
The words of the Constitution say that “Congress shall have the power to lay and collect taxes… to pay the debts and provide for the defense and general welfare of the United States.” But never before 1937 had it been seriously held that “general welfare” might be any sum total of particular welfares that an Administration might choose to back in response to the lobbying of pressure groups. The new definition of “general welfare” meant that any “interest” could get anything if it could develop the political muscle to force its attention on Congress as a deserving body of citizens. It did not matter that the particular welfare of particular groups would have to be paid for by tax levies on citizens who might be seriously injured by the semantic torturing of the General Welfare clause.
“Due Process”
With a new Supreme Court working its verbal magic to define any arbitrarily chosen particular welfare as “general welfare,” the decks were cleared for practically anything at all. And once the notion of spending Federal money to subsidize the farmer had been justified under the Welfare clause, the Court followed by ruling in the Wickard v. Filburn case that “it is hardly lack of due process for the government to regulate that which it subsidizes.” Accordingly, a farmer was penalized for raising wheat beyond a quota set by the Department of Agriculture.
Mr. Garber says that the argument that the wheat was for the sole consumption of the farmer’s family and livestock was turned down on the unprovable ground that “if farmer Filburn had not raised his own wheat for his own use, he might conceivably have purchased it from the channels of interstate commerce.” Since nobody could possibly know what the farmer might have done in a purely hypothetical case, the Supreme Court was venturing forth into mind reading, which is something that courts are forbidden under the law of evidence to do. It would have been just as rational for the Supreme Court to decide that a man standing before it might be a murderer because he had been endowed by nature with two hands that were capable of choking someone.
In the fifties and sixties the Supreme Court has taken to reading books on sociology, such as Myrdal’s An American Dilemma. And, to enforce its sociological predilections, the Court has decided that the states cannot be trusted to run their own affairs in such matters as education and the control of their local election laws. It does not matter that the Federal government itself, with its Senate that gives equal representation to each state, was set up on the analogy of the colonial government of Connecticut, which allowed for geographical unit representation in one of its legislative chambers. In sheer defiance of the historical truth that the states had never contemplated delegating the power to apportion their local legislative districts to the Federal government, the Supreme Court has stepped in to tell the states what they may or may not do about local representation.
This is an absolutely clear case of judicial usurpation of the legislative power, but the usurpation has been accepted rather apathetically. Senator Dirksen has been trying to rectify matters, but he can’t seem to gather enough votes for an amendment that would do nothing more than restore the Constitution to what it was before the Court arbitrarily changed it.
Harmony by Compulsion
Mr. Garber talks about many other cases that involve judicial “legislating.” The integration of our school systems may be socially desirable, but Mr. Garber doesn’t think the Supreme Court had the right to command it. Whether he is on sound ground here depends on one’s feeling about the possibility of maintaining “separate but equal” schools under the old principle of segregation.
The trouble, in any case, is that integration of the schools becomes impossible wherever Caucasians, voting with their feet, move out of our big cities. Mr. Garber remarks that “the main cause of segregated living areas was not the inability of Negroes to move into areas occupied by Caucasians, but the Caucasians moving out… many square miles of Northern cities would become integrated every year if just half the Caucasians would stay where they had been living!”.
YOUR CHURCH — THEIR TARGET, Edited by Kenneth W. Ingwalson, Better Books (Box 2096, Arlington, Va. 22202), 1966, 275 pp., $4.50 cloth, $3.00 paper.
Reviewed by Norman S. Ream
The general drift toward socialism in our society has tinged many clergymen with what Ludwig von Mises, doyen of classical economists, calls the “anticapitalistic mentality.” But not all, as this book — a symposium by thirteen authors — attests.
During the years of the Great Depression, delegates to the national convention of one major denomination voted a resolution favoring the abolition of the capitalistic system and all the forms which sustain it. Year after year since that time other ecclesiastical bodies have consistently attacked free enterprise, the profit motive, individualism, and private ownership of property. Today, these same voices are almost always found with secular “liberals” urging increased governmental intervention, world government, admission of Red China to the United Nations, a negotiated peace in Vietnam, peaceful co-existence with communism, and so on.
One must not bring a blanket indictment against clergymen and churches, lest he harm the religious forces which are friendly to economic and political liberty. These constitute the majority of churchmen, who have not, however, been able to make their weight felt. This book is a vehicle for “the other side,” and Mr. Ingwalson has done us a great service in bringing together these essays and delineating for us, as his subtitle suggests, “What’s Going on in the Protestant Churches.” Perhaps of more interest and concern than the situation as it exists today is the illuminating insight one derives from the authors as to how we got where we are. This historical material, it seems to me, is particularly valuable; and very few men have a greater insight and understanding of this process than do Irving Howard, Howard Kershner, and Edmund Opitz — to name but a few of the contributors.
This book should be especially helpful to laymen who find it difficult to understand how and why the churches have become so involved in the political left, and to young theological students and ministers who need to know how the churches have been subverted and used by the socialists and communists.
I would quibble with one or two contributors who identify political liberalism with theological liberalism. The two are not logically joined, and, as a matter of fact, some of the best essays in the book are by men who are theologically liberal. But as the editor says in his Introduction, “These men may not always agree with each other on details. Neither will you agree with all they say. But the problem and challenge for laymen and clergymen has been made crystal clear.” Amen!
